One of the other issues discussed on Day Three of the hearings was the citation of foreign law. When questioned by Sen. Tom Coburn (R–OK) about the issue, Alito said, "I don’t think it’s appropriate or useful to look to foreign law in interpreting the provisions of our Constitution."

The New York Times reports, "The nominee was, at least implicitly, finding fault with the Supreme Court’s ruling on March 1 that outlawed the execution of killers who were under 18 at the time of their crimes. That opinion, decided by a 5-4 majority, relied in part on the trend of international opinion against the death penalty, especially for youthful offenders."

Transcript

AMYGOODMAN: I wanted to turn to another issue discussed, day three of the hearings, on Wednesday: citation of foreign law. This is Oklahoma Senator Tom Coburn.

SEN. TOMCOBURN: And I was interested in — Senator Kyl asked you yesterday about foreign law. It’s something that is extremely disturbing to a lot of Americans, that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law. Matter of fact, it says the obligation is to use the United States law, the Constitution and the treaties, and that’s exactly what Article III, Section 2 says. And so, there’s no reference at all to foreign law, in terms of your obligations or your responsibility. And, matter of fact, the absence of it would say that maybe this ought to be what we use, and the codified law of the Congress and the treaties, rather than foreign law.

So, the question I have for you, and I couldn’t get Judge Roberts to answer it, because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don’t think it is proper for the Supreme Court to use foreign law. And I personally believe that that’s an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice. And I just wondered if you had any comments on that comment.

JUDGESAMUELALITO: Well, I don’t think that we should look to foreign law to interpret our own Constitution. I agree with you that the laws of the United States consist of the Constitution and treaties and laws, and I would add regulations that are promulgated in accordance with law. And I don’t think that it’s appropriate or useful to look to foreign law in interpreting the provisions of our Constitution.

I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world. The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time. They wanted them to have the rights of Americans. And I think we should interpret our Constitution — we should interpret our Constitution. I don’t think it’s appropriate to look to foreign law.

I also don’t think that it’s — I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you’re going to survey. And then it’s often difficult to understand exactly what you are to make of foreign court decisions. All countries don’t set up their court systems the same way.

Foreign courts may have greater authority than the courts of the United States. They may be given a policymaking role. And therefore, it would be more appropriate for them to weigh in on policy issues. When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policymaking role before legislation was passed. And other countries can set up their judiciary in that way. So you’d have to understand the jurisdiction and the authority of the foreign courts.

And then, sometimes it’s misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it’s located. That can be — if you focus too narrowly on that, you may distort the big picture. So for all of those reasons, I just don’t think that’s a useful thing to do.

REP. TOMCOBURN: It actually undermines democracy, because you get to pick and choose. And the people of this country don’t get to pick and choose that law. It’s people from a different country. So it actually is a violation of the Constitution. And it, to me, I very strongly and adamantly feel that it violates the good behavior, which is mentioned as part of the qualifications and the maintenance of that position.

AMYGOODMAN: Republican Senator Coburn questioning the Supreme Court nominee, Samuel Alito. We’ll get response from the Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Ted Shaw, when we return. We’ll continue with Jamin Raskin of American University, and we’ll be joined by Earthjustice, to talk about Samuel Alito, the environment and public health.

[break]

AMYGOODMAN: DemocracyNow.org, linking to the reports of our guests, among them the report on the nomination of Judge Samuel A. Alito, Jr. to the Supreme Court of the United States that is written by the NAACP Legal Defense and Educational Fund. Ted Shaw is the Director-Counsel and President of the NAACP Legal Defense and Educational Fund. He’s with us in our Firehouse studio. Juan?

JUANGONZALEZ: Well, before the break, Ted Shaw, we heard an exchange with Judge Alito over his views on the Constitution and the relevance of foreign law. You reacted quite in an animated fashion as you listened to his remarks. Your views?

TEDSHAW: Well, let me first say that in a few cases in recent years some justices on the courts have looked to international law to supplement their views and their opinions. But their opinions have been written based upon interpretations of the Constitution and American law. To the extent that they have cited foreign law, they’ve cited to say we are either acting consistently or inconsistently with the rest of the world.

So, for example, there was a case before the Supreme Court a couple of terms ago involving the application of the death penalty to children, to minors. And we, in the United States, were out of step with the rest of the world and are out of the step with the rest of the world on the death penalty, but particularly with respect to children. Almost nobody in the rest of the world executed minors. Now, they were interpreting the Constitution first and last, but they noted that.

The United States also signs international laws and treaties. And part of what is in the oath is to uphold the laws and the treaties signed by the United States. The United States practices exceptionalism with respect to many of these treaties. In other words, the United States may sign a treaty, but then it has no real effect here within the United States. So we don’t really bring the concept of human rights home to the United States.

So, I was reacting because, in part, what the senator was suggesting was that even citing foreign law or international law may be an impeachable offense. He didn’t use the word "impeachable," but when he talked about good behavior, that appears to be what he was talking about, when he said, you know, maintaining good behavior is written into the Constitution on the part of judges.

So this is such an extreme view, and it’s also a distortion of what justices and others are doing when they cite or look to international laws, not that it trumps American law, but it’s a kind of a check to see if we are out of step with the rest of the world in a way that does not replace the interpretation of the Constitution, which is their primary responsibility.

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